Obama’s planned use of discretion on immigration enforcement looks cynical, political

Share this:

President Barack Obama is expected to issue an executive order on immigration very soon.

The election results are in and Republicans will soon be in control of the entire Congress, but President Barack Obama is still promising to issue an executive order on immigration very soon. However, if the reason Obama wants to use executive-order power instead of having a comprehensive immigration law is that Congress cannot pass such a law (as he stated repeatedly), doing it before the next Congress starts working is illogical because the chances of immigration law being passed next year are much higher now; so insisting on issuing this order seems superficial and purely political.

It was also very cynical to wait until after election in hope not to sink vulnerable Democrats and even more cynical to do it now when the voters showed that his presidential agenda was not what they wanted.

But let’s put this aside and look at other aspects of this endeavor. In his article on this in Slate, Eric Posner, a law professor, argued that the president, as a representative of the executive branch, has prosecutorial discretion what law to enforce and whom to prosecute under each law just because there is never enough money to enforce all laws and prosecute everyone. He uses an example of jaywalkers, who are quite often not stopped even if a police officer is present. The only limit on presidential power is that he cannot enforce the laws in a way that favor or disfavor specific ethnic groups. Since this article summarizes the typical arguments in support of Obama’s planned executive action, it makes sense to analyze this line of reasoning.

Jaywalking is probably a good example to start with. Yes, I would guess it is a common practice for police officers to ignore jaywalkers altogether (thus choosing which law to enforce) or stop just the most brazen ones (thus choosing whom to prosecute). And if the former may make some sense (jaywalking is less dangerous than speeding), doesn’t the latter mean that a police officer can let his wife go but stop his mother-in-law? I am from the Soviet Union and this is how all laws were applied there – selectively, and trust me, that was not good.

Even if lawful, is it good practice?

So even if this is all lawful, we should ask whether this is a good practice and whether our president should use that approach. And even if this logic was used before by various presidents, did it make our country better and more law-abiding? Do more people believe in the rule of law or less? In my mind, it makes sense that if a law cannot be applied consistently, it should not be on the books and if it is on the books it should be applied to everyone or at least randomly. Doesn’t this country value equality?

Continuing our analogy with jaywalking, imagine a police chief announcing that, because he does not have the money and the City Council is not willing to adjust the law by reducing the area where jaywalking is a violation, he will stop enforcing jaywalking ordinance anywhere but Main Street. Doesn’t this announcement make it way different from police officers’ using discretion in the field and make it look like the police chief is actually changing the law, at least for all practical purposes? I do not think that the City Council would look kindly at that. It would be OK if the City Council makes such a declaration (but in this case they could just revise the ordinance) but not a police chief. Obviously, Congress, as a legislative body, is an equivalent of a City Council while a police chief (or a mayor) is a part of the executive branch.

But wait, there is more to all this, as they like saying on TV. Imagine that the police chief announces that he will instruct his police officers to stop only minorities, and whites will be allowed to jaywalk; everyone will cry foul because the discrimination is obvious. But what if he says that only those who drive a BMW, Mercedes, Porsche, or Jaguar will be ignored and everyone else will be stopped? Clearly, minorities own fewer of those luxury brands and this practice will effectively be discriminatory. Obviously, Obama’s executive order will benefit the Latino community significantly more than any other (that is why they are pushing for it so hard) so I would think that this action will be, in fact, giving advantages to certain races more than others, making it, in effect, discriminatory and thus illegal, even by Posner’s standards.

Presidential intent

What makes this whole thing even worse is Obama’s take on existing laws: Many times he expressed his opinion that existing laws are unfair and must be changed; that gives an impression that he wants to use his executive power not because he lacks money but because he is opposed to the existing laws to begin with, effectively changing the law he doesn’t like (especially, if we consider that he hopes to gain some political favors along the way by issuing this executive order). No other president who used his executive power to exclude certain groups from immigration law enforcement had criticized existing laws that strongly before doing it, nor were they trying to cater to certain political or racial groups (nor was it done right after Congress failed to act on immigration).

So not only will this executive order disproportionally benefit a certain ethnic group but it seems intended to benefit that specific group for the president’s and his party’s political gain (and it is obvious from Obama’s constant promises to the Latino political organizations) thus making this executive order clearly discriminatory.

Looking at the real reasons

It is interesting that even though Posner justifies the need for and legality of prosecutorial discretion by limited financial resources, none of the offered examples of presidents using that power in the past had anything to do with money; they always did it for economical, humanitarian or political reasons (good or bad is another question). In other words, the legal justification for prosecutorial discretion is limited resources but the real reason for using it is not.

Of course, the actions of Obama’s administration only support my theory that Obama’s intended actions are driven by his political views and expediency rather than lack of money. For example, the Department of Justice sued Arizona for trying to enforce the immigration law but is turning a blind eye to the actions of the so-called sanctuary cities who actually announce that they will not enforce this federal law. For two years I have been trying to pry a justification for this from the Department of Justice but so far unsuccessfully.

And if this administration did indeed deport a record number of illegal aliens (by the way, a term used by the Supreme Court in its decision), it is because that number includes those caught at the border, where we see the record number of attempted border crossings. So let’s stop trying to find justification for Obama’s activist policies and discuss what is good or bad for the country.

Ilya Gutman is an immigrant from the Soviet Union who now lives and works in Marshall, Minnesota.

WANT TO ADD YOUR VOICE?

If you’re interested in joining the discussion, add your voice to the Comment section below — or consider writing a letter or a longer-form Community Voices commentary. (For more information about Community Voices, email Susan Albright at salbright@minnpost.com.

Comments (33)

The point of Posner’s article, which I agree with, is that the non-prosecution (or deferred prosecution) of certain types of laws does not amount to repeal.

I don’t understand the right’s obsession with immigration. It is completely unrealistic to deport millions of people who have made lives and become contributing members of the community or to to create some sort of fortress-like border to stop the tide of illegal immigration. The problem is fundamentally an economic one which at bottom can be traced to substandard and stagnant wages for jobs in this country. I’ve often heard that undocumented immigrants take jobs Americans won’t take. To me, it’s entirely reasonable and logical that Americans won’t accept sub-minimum wages to roof houses or perform other low paying jobs, especially jobs that entail great risk to safety. Despite all their complaining, the right would really rather have millions of undocumented immigrants flowing into this country to take jobs which pay substandard wages than an organized labor force in the US that is paid enough to actually support and raise a family.

“The point of Posner’s article, which I agree with, is that the non-prosecution (or deferred prosecution) of certain types of laws does not amount to repeal.”

The point is not about the repeal of the law, it is the fact that the democracies follow the “rule of law”, where everybody is treated equally, not “rule by law”. Just look at almost any autocratic government. “Enemies” of the government are prosecuted, “Friends” are not. For justice to work, we need wisdom and compassion. Without that we live under the tyranny of the law. Thus we need discretion. However, too much discretion leads to a different type of tyranny, where the select people in power make decisions instead of the people.

While I want immigration reform and look favorably on Obama’s intentions, I am aghast at his specific actions.

“Despite all their complaining, the right would really rather have millions of undocumented immigrants flowing into this country to take jobs which pay substandard wages than an organized labor force in the US that is paid enough to actually support and raise a family.”

I would add to this statement, that part of that reasoning is that those on the right who employ these undocumented immigrants like paying substandard wages, because they get to keep more of the income.

Discretion is a necessary component of law enforcement in democratic societies for a variety of reasons, not the least of which is the fact that liberal democracies (That’s what the United States is) value Justice over compliance. Most of us would rather have a free society, be it somewhat messy around the edges, than a well disciplined tyrannical society.

The conservative obsession with “disciplined” societies has never produced a free society. This is yet another conservative failure to understand and appreciate the complexity of our form of government.

And of course the application of these disciplinary demands on President Obama’s immigration policy are more than a little hypocritical. Where’s the far-right outcry when Ark. republican Governor Beebe pardon’s his own son’s drug arrest? http://www.bbc.com/news/blogs-echochambers-30091789

President Obama isn’t the first president to exercise discretion or executive power. If we applied our laws equally half of Bush’s White House team would be behind bars and Nixon would have died in prison.

….doing it before the next Congress starts working is illogical because the chances of immigration law being passed next year are much higher now….

Really?

(quote)

Boehner has long played footsie with Democrats over passing a comprehensive bill. Last November, Boehner told reporters that immigration reform “absolutely” wasn’t dead. But in February, after the right wing freaked out over “immigration principles” that the House GOP leadership released, Boehner pulled back and announced that no reform was possible, because Obama was untrustworthy. Just like that, immigration reform was dead.

But couldn’t this time be different? It seems highly unlikely, for four reasons:

1. Ted Cruz’s Presidential Ambitions. As the Republican primaries heat up, immigration reform will be one of the top issues. And the Texas freshman is almost certain to take a hard line position to win over the GOP base that votes in primaries. In doing so, he’s going to pull his entire party to the right, leaving even less space to compromise with Democrats. As the Washington Post’s Greg Sargent has written, this might be the nightmare scenario for the Republican Party.

2. Marco Rubio’s Recent Backtracking. Rubio infuriated the base when he brokered the Senate immigration bill in 2013 that included a pathway to citizenship. Ever since, he’s been trying make amends. Just a few days ago, Rubio said that if the Senate bill came up under today’s political atmosphere—when, according to Republicans, distrust of Obama is at an all-time high—he would vote against it.

3. The Right Wing’s Victory over the House GOP Border Bill. Just before the August recess, the House stayed in session an extra day after the House leadership was unable to pass their preferred legislation to address the border crisis. Faced with a revolt from his right, Boehner made the bill even more conservative and allowed a vote on a bill to undo Obama’s 2010 executive action on immigration. In other words, the House GOP is moving further to the right on immigration, not towards the center.

4. Eric Cantor’s Primary Defeat. It’s certainly true that Eric Cantor, the former House Majority Leader, did not lose his primary to Dave Brat solely, because of immigration reform. There were many other reasons, including Cantor’s friendliness with Wall Street and his broken promises to conservatives. But many Republicans will take his defeat as a sign not to compromise on immigration reform in any way. That message will not disappear next year.

Boehner’s comments Tuesday were a not-so-veiled attempt to dissuade President Obama from taking unilateral action on immigration. “I did outline that, you know, there’s a possibility that Congress could take this issue up next year,” he said. “But if that were going to happen, there are things that he should do, and things he should not do as we lead up to this.” As my colleague Brian Beutler has written, the Republican desire to stop Obama’s executive action is an indication that the politics play in Obama’s favor.

But Boehner’s threat here is not just about politics. It’s also about policy. If Obama wants to complete immigration reform in 2015, then he shouldn’t take executive action this year. Except that threat is laughably weak. Obama shouldn’t postpone his executive action in hopes that the Republican party overcomes miraculous odds to pass immigration reform. Boehner’s threat has no credibility.

If President Obama was really concerned about the illegal immigrants’ plight, he would have acted when the Democrats controlled both the Senate and House in 2009 and 2010. But Obama noticed he and his policies are falling out of favor the last couple of years, especially Obamacare. He was particularly humiliated by the results of the midterm elections this month. As a result, Obama is sticking it to Americans by cramming this executive order down our throats. He knows most of us don’t want it, he knows it’s illegal, but we’re getting it anyway.

what is it with the rightie obsession of using the term “cramming it down our throats” on virtually every policy that they disagree with? If he was a republican president, they would laud his actions as “bold, decisive leadership.” Whatever…thanks Rosalind for once again letting us peek into the fascinating, yet sometimes frighing world of “thought” from inside the conservative bubble.

Trust Obama to bring a new, devious twist to a town known for it’s above board nature.

Seriously, I guess I would be hard-pressed to name many legislative or executive actions ever taken that didn’t hurt or benefit a specific group. And they are all dressed up as benefiting society as a whole.

Mr. Kingstad, have you read my article? If you agree with Mr. Posner, where am I specifically wrong (except of course contradicting your beliefs)? And there is no “right’s obsession with immigration” – they are against illegal immigration which is totally different from legal immigration, correct? I also wonder why some Americans do not take low paying jobs… they did at Hoover Dam. Oh, yeah, the government now gives money away even to those who don’t want to work or get even minimal education… Of course accusing the Right of wanting illegal immigrants to come is beyond pale since it is the Republican Party that wants to secure the border…

Mr. Ecklund, why are you so sure that those who employ illegal immigrants are on the right? Or, since you hate the right, you are ready to accuse them of everything and anything?

Mr. Udstrand, speaking about discretion, I forgot to include this in my article but here is an interesting possibility: the next Republican president announces that he (or she) will not fully enforce some provisions of anti-discrimination laws and the cake makers in Colorado will be allowed to choose their customers. Would you be OK with that? And for your information, the disciplined societies are Socialist societies so conservatives cannot support them (some liberals do, though); conservatives just support the law.

Of course, I talked about what other presidents did.. And it was Mr. Obama who started killing American citizens with drone strikes – should he be in jail?

Mr. Rovick, all your examples do not prove anything – Obama must have waited and give Republicans a chance – it is that simple. Saying “they would never do it” doesn’t cut it. And of course Boehner was trying to dissuade Obama from issuing the order – it is not veiled at all. And it is not Republican’s actions that show that Obama actions play in his favor; it is Obama’s insistence that shows that he thinks it is in his favor.. But just think of the example above what the next president can do to think harder… And you too, Mr. Myron… Then you may feel like many people feel now.

Again, no one disputed my logic. How about talking about specific points I made?

Obama had time to push through ACA with no Republican support whatsoever so he clearly had time to do immigration law especially considering that he promised it before his first election. So no, he did not wait for six years. And yes, he can wait another two months…And this order being a reward to constituency makes it somewhat immoral but not illegal; other things I listed make it illegal. Plus, again, the main thing is if this is good for the country and an answer is obviously not.

“Mr. Ecklund, why are you so sure that those who employ illegal immigrants are on the right? Or, since you hate the right, you are ready to accuse them of everything and anything?”

I never said that only “those who employ illegal immigrants are on the right.” What I said, and you can scroll up and LOOK at it, was “…those on the right who employ these undocumented immigrants…”

There is a rather large difference between the two statements.

Also, I’ve never said I hate the right. There are not a lot of people in the world that I truly ‘hate.’ I find the leaders of the right-wing in this country to be utterly contemptible, yes. I find conservative arguments to be illogical, and I think conservative solutions to many problems are sub-optimal, or predominately favor one racial and socio-economic group at the expense of another, so I don’t think conservatives are very egalitarian, either, but I recognize that those are all points that merit debate.

What I ‘hate’ is reactionary, BS politics, SPECIFICALLY the kind employed by republicans in the federal and state governments over the last 15-20 years, unrelenting conservative demagoguery, and the perpetual victimhood of the the religious right.

“the next Republican president announces that he (or she) will not fully enforce some provisions of anti-discrimination laws ”

Every President does this. During George Bush’s time the priorities of certain discrimination investigations, voting rights acts were minimized. This alone negates your entire argument against Obama. That he does not like the law and therefore will not enforce it. Republican Presidents have done the same thing as i’ve pointed out,

I am just not sure that cynicism or just the appearance of cynicism is a reason to reject a policy. Immigration is a very real problem in this country, and the president is a addressing it. What matters is impact of his policy on people, not really his rather indeterminable subjective motivations in making such policy. Let’s not forget, President Obama will be out of office in just a little two years, and when he does leave office his subjective motivations for anything he does, will shift from mattering little to complete irrelevance.

Not that cynicism or lack thereof, matters a lot, but I would suggest that here, arguably, the president was acting cynically by not implementing the immigration executive orders before the election, when they could have been damaging to his cause or at least unpredictable in their political effects. By waiting until after the election, the last election that will send legislators to Washington that he will have to deal with on an extended basis, the president seems to have put self interest aside. In other words, his actions, almost by definition were not cynical.

Not that it matters, but by attributing the actions of others to self interest, the author of the piece is committing an act of cynicism. He may be right, he may be wrong, but right or wrong he is cynical.

Our president is NOT breaking any laws, what he’s doing is perfectly legal. That’s the thing about laws, sometimes some laws supersede others, that doesn’t leave us with an unlawful society or government, it just recognizes complexity.

Yes, every president has priorities and to certain degree ignores some laws. But they do not announce this to great fanfares to let everyone know in advance – that is a huge difference here.

Just for the records – I do not object of Obama’s drone strikes. I brought up this point to respond to those who said that Bush should be in jail for similar things.

And deciding whom to let in as refugees is rarely driven by politics; otherwise we would not have so many from Somali and Iraq…It is based on humanitarian ground.

Mr. Foster, immigration is a very real problem; it is just not in presidential power to address it this way, as I tried to prove. And he is addressing the wrong things as well, trying score political points with certain groups of people rather than benefit the country.

Mr. Udstrand, again, you are declaring your point of view but do not address my specific points. Will you please go item by item? And you did not say if you will be OK with the next president declaring that he would not enforce certain anti-discrimination laws (or he may choose not to prosecute tax evaders who pay over $100,000 in taxes on the basis that they already pay enough and may invest that money). Would you like it?

immigration is a very real problem; it is just not in presidential power to address it this way, as I tried to prove.

Your article seems to argue that it is not good policy to use presidential power this way, not that the president doesn’t have such power. As for scoring political points, that’s sort of a pejorative way of describing what politicians do. President Obama is responding to the needs and concerns of those who voted for him, just as his opponents are responding to their voters. Certainly, there are political implications to both positions, but the fact that a policy has a political dimension is not a reason for pursuing. Just about all policies do have political consequences, and a president who avoided political issues would end up doing nothing at all.

I actually argued several things. First, I said that it is bad in general to use (or not use) the laws selectively – it makes the entire thing too subjective. Second, I did argue that the president doesn’t have this power because announcing this executive order amounts to way more than just prosecutorial discretion. Third, I mentioned that this announcement is not moral for various reasons. Fourth, I argued that this order is discriminatory making it even more unlawful. And finally, I talked a little bit that what Obama is proposing is a wrong thing to do but that was mostly in mat other article.

You don’t quite argue that it is illegal. And the legal authority you cite says it’s legal. I don’t really think you make the argument that the president’s actions are immoral either, although you may think the arguments you do raise, such as the possibility for discrimination, are moral arguments.

Discrimination, in a couple of ways, seems to be what you are concerned about. There is nothing inherently illegal, and I would suggest, immoral about discrimination. Broadly understood, discrimination is a slightly pejorative term for making a choice, and people and politicians make choices for all kinds of reasons all the time. Where legal and moral issues are raised is where discrimination is based on membership in protected class. It’s OK, for example, to fire an employee because he or she is a member of the class of incompetent employees. It’s illegal however, to fire an employee because he is a member of a protected class, because he is of a certain race, for example. As it happens, there is no reason at all to think the president in his order is discriminating against a protected class or engaged in racial discrimination. While it may be true, that Latinos, the group you focus on, may be the primary beneficiaries here, there is literally no reason to think the president is discriminating against that group. There are in fact plenty of illegal immigrants who are not Latino to whom the president’s orders are equally applicable.

In terms of prosecutorial discretion, something also I would add is that unlike jaywalking, being in the United States illegally is not a crime. Discretion or not, with respect to someone who is here illegally, there is nothing to prosecute.

I did argue that it was illegal – my major points were to prove that the legal authority I cited was wrong. In brief, it is illegal because prosecutorial discretion concept is based on budget constraint but I do not think Obama actually mentioned that reason so Mr. Posner’s legal justification is irrelevant. Also declaring this policy immediately moves it from prosecutorial discretion category into law making because it effectively becomes a law, even if temporarily. As I said, a police chief doing that would be fired immediately.

I did say that it was immoral because withholding it until after election in order not to harm your party and then doing it after that in attempts to gain votes when there is a chance that a law can be passed later on is bad.

The reason I mentioned discrimination was to underline that even based on Mr. Posner’s limitations this order is illegal. He specifically said that “…executives may not favor or disfavor ethnic or racial groups…” and that is exactly what this order is doing. Yes, there will be some other people who would benefit but mostly it is Latino and Obama’s actions and words prior to issuing this order were a clear proof of that (he met with Latino representative, gave speeches in front of Latino audience, etc.) So even by Mr. Posner’s standards it is illegal.

By the way, protected classes are the result of politics, not moral. It would be immoral and illogical to fire a person just because he or she is blond but totally legal because blonds are not a protected class.

You are right, being in America illegally is not a crime; coming here illegally is a crime. But on that basis, as soon as a person crosses a street, he is not committing any crime and can’t be stopped for that, the same as a bank robber as soon as he is out of the bank. Clearly, that doesn’t make sense and a police officer is not obligated to stop a person in the middle of the street in the process of jaywalking in order to make it legally.

What you argued was that you didn’t like an outcome very much. That doesn’t make that outcome illegal. The fact that President Obama didn’t state a legal argument doesn’t mean such an argument doesn’t exist or isn’t applicable. As for the police, they accommodate themselves to illegal alien issues all the time. Bear in mind that being an illegal alien, unlike jaywalking, is not a crime.

As for the moral arguments, they are many and cut all sorts of different ways. There are moral arguments both for and against the president’s actions. The fact that an outcome might be regarded by some as immoral doesn’t make it contrary to law.

As for discrimination, if Mr. Posner is claiming that actions which affect certain ethnic groups unevenly, he is flat out wrong. In making and enforcing laws, the government is simply under no obligation to arrange matters such that those laws affect all groups equally.

Issues related to protected classes are the result of Supreme Court rulings. If politics comes into play, that’s an issue for Supreme Court jurisprudence. The fact is, the Supreme Court rules on lots of issues with political implications.

To act, cops must have reason to believe someone has committed a crime. They can’t just arrest people simply because they suspect that they might have committed jaywalking at some time in their lives. Nor can they assume that just because someone is on the other side of street, that they jaywalked to get there. Lots of illegal aliens entered this country legally. Simply being here is not evidence that they did not. And in this country, there is a presumption of innocence. That means it’s up to the state to prove a crime has been committed, not a defendant to prove a crime wasn’t committed.

Hiram, please the last paragraph of my last post – it is about what a crime is and what is not. And it is not about whether I like what Obama did or not – I was talking mostly about legal issues.

Many illegal aliens did come here legally but then they overstayed their visas which illegal. Yes, there is a presumption of innocence but a person stopped for a law violation (jaywalking for example) should name himself and then it can be discovered (and proven) if he is here illegally

“, there is a presumption of innocence but a person stopped for a law violation (jaywalking for example) should name himself and then it can be discovered (and proven) if he is here illegally.”

Being here illegally is not a crime. Unlike jaywalking. Overstaying a visa is not a crime either.

“I believe there were legal cases when some policies were found discriminatory even when the intent was not.”

Lots of policies are discriminatory. If, as you suggest, President Obama’s immigration reforms discriminate in favor of a certain ethnic group, it must also because the policies he is changing discriminate against that same ethnic group. It’s not the case, or I would at least hope it’s not the case, that we require all laws enacted by Congress to affect all ethnic groups equally.

But as we all know, the vast, overwhelming number of people in this country illegally, entered this country illegally, and that is a crime.

A fair number of people who are on the other side of the street, got there by jay walking. But that statistical type statement isn’t any kind of proof of anything.

The problem here is with discretion. As the author of the original piece suggests, discretion can be exercised erroneously, and it can be abused. But that doesn’t mean that having discretion is unconstitutional, or contrary to law. The founding fathers, in so many words, vested the executive poser in the President of the United States. And as any executive could tell you, part of the job is prioritization, the proper of allocation of less than unlimited resources. If you don’t like the way an executive does his job, he can be fired. The American people had that option in 2012, and they rejected it when they elected President Obama to a second term.

Good point – many people who are on the other side of the street got there by jaywalking. And if there is a camera with recording on it or witnesses who watched it (in other words, it that can be proven), they still can be prosecuted. Most people here illegally came here illegally and if that can be proven, they can be deported (no one is asking to put all of them to jail). So a fair comparison is being here illegally to being on the other side of the street. And I am not even talking that most of those here illegally have most likely violated other laws (faking driver’s license, SSN, etc.)

I never said that having discretion is unconstitutional. I said that Obama abused it big time. Does anyone know if this order will save money or will cost more per illegal alien? As for 2012 results, it looks like people are having a second thought now..

That’s really my point. That and that you didn’t really make the point that President Obama was acting illegally. You didn’t close the circle of your argument.

“II said that Obama abused it big time.”

And this is the problem. In your opinion, the president abused his discretion, but it doesn’t seem to be your position that he didn’t have that discretion. You have a policy dispute with the president, but that is something that falls far short of violating the law. It simply isn’t the case that simply because you, or even me disagrees with the president, that the president has done something illegal.

Look at it this way. Jaywalking is a crime. Yet the federal government makes little effort to stopping it, making the discretionary choice to put it’s resources elsewhere. That being the case, how is it an abuse of discretion not to enforce laws which aren’t criminal in nature, when the government makes the deliberate choice not to enforce laws against actual crimes?

In my piece I talked about what will make police chief’s discretion not to prosecute jaywalkers illegal even though it may be legal in general. Many acts may be legal under some circumstances and illegal under others (murder in self-defense is legal but not because one doesn’t like other’s hat’s color). So if discretion in general is legal, his use of discretion in this case was not (and not because I do not like what he wants to do).

Your argument seems to be that discrimination in impact makes a law, I don’t know, illegal. This is simply not the case. Where immigration is concerned, it is perhaps the case that President Obama’s orders have a disparate impact on one group or another. If that’s the case so do the laws he is declining to enforce, whose discriminatory effect he is attempting to ameliorate. But neither side of that dilemma is in fact relevant. Whether or not a crime has been committed or a statute violated is not relevant to the subjective intent of the officer enforcing it. A murderer doesn’t get to get off because he or she was arrested by a racist cop.